93 Ark. 484 | Ark. | 1910
(after stating the facts). There was evidence to sustain a finding that appellant was negligent in causing the engine and tender to be. backed at an unusual speed, and also in leaving open the switch. While this was the negligence of the fellow servants of Davis, yet, under the act of March 8, 1907, this was negligence for which appellant was liable. Aluminum Company of North America v. Ramsey, 89 Ark. 522. But the undisputed evidence shows that the negligence of Davis concurred with the negligence of his fellow servant in producing the injury which resulted in his death, and such contributory negligence on his part is a complete defense to the suit.
It was the duty of Davis under the uncontroverted evidence to keep the lookout for his own safety and that of his co-employees. “The lookout must be kept in the yards of the company as well as on other parts of the track, and is for the benefit of employees of the company as well as others.” St. Louis S. W. Ry. Co. v. Graham, 83 Ark. 61, 68; Kansas City So. Ry. Co. v. Morris, 80 Ark. 528; Little Rock & H. S. W. Ry. Co. v. McQueeney, 78 Ark. 22. If Davis had been keeping such lookout, he could have seen the target that warned him of .the open switch. This signal of danger was on, and, according to all the evidence on the subject, could have been seen by Davis, had he been keeping the lookout. If he did not discover the peril in time, it was through his own negligence.
There is nothing in the evidence to warrant the conclusion that the employees on the engine, 'discovered the peril of Davis in time, by the exercise of ordinary care, to have averted the collision. The testimony of the engineer shows-that he did everything in his power to avoid the injury after the peril of Davis was discovered.
Contributory negligence was established as matter of law, and the court erred therefore in refusing appellant’s prayer No. 1.
For this error the judgment must be reversed, and the cause remanded for new trial. It is so ordered.